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new lease the yearly rent be reserved, albeit these collateral reservations be omitted, yet these leases are good. So also, if there be more rent reserved upon the new lease than the rent that hath been anciently paid, the lease is good notwithstanding. So, (a) if tenant in tail of land let a part of it that hath been accustomably let, and reserved the rent pro rata, or more, this is good, for that is in substance the accustomable rent. Also, if two co-parceners be tenants in tail of twenty acres, every one of equal value, and accustomably letten, and they make partition so as each to have ten acres, they may make lease's of their several parts of each of them, reserving the half of the accustomable rent. If the accustomable rent had been payable at four days or feasts of the year, yet if it be reserved yearly, payable at one feast, it is sufficient, for the words of the statute are, to be reserved yearly. On a question, Whether the reservation of the ancient « copyhold," rent or more, in a lease made by tenant in tail, would answer the description of the ancient "accustomed" rent, within the statute, it was held that it would (b).
9. Such leases must not be made without impeachment of waste. Therefore, if a lease be made for life, the remainder for life, err. this is not warranted by the statute, because it is dispunishable of waste. But, if a lease be made to one during three lives, this is good; for the occupant, if any happen, shall be punished for waste. Prebend makes a lease for years, reserving the running of a colt, rendering rent, a new lease, rendering the same rent, without reserving the running of a colt, adjudged good; because quoad this, it is neither reservation, nor exception. But if a lease be of a manor, except the woods, rendering rent, and after the expiration of it, there is a new lease rendering the same rent without such exception, the second lease is bad (c).
By this statute, then, a tenant in tail is enabled to grant such leases as shall bind his issue in tail; though not those in remainder or reversion.
If tenant in tail male demise for a term of ninety-nine years, and his lessee assign over to another, but before such assignment tenant in tail male dies without issue male, no action of covenant upon the lease can be maintained against the representatives of the grantor by such assignee, the lease being void at the time of the assignment, and no interest passing under it (d).
Tenant in tail male had issue two sons by divers centers, and died; the eldest son entered and made a lease for twenty-one years, reserving rent generally to him and his heirs and assigns, and died without issue, leaving two sisters his heirs at law; and if by this reservation, the rent belonged to the second brother, to whom the reversion
(«) Co. Lit. 44. 6. I (,) Co. Lit. 44. b. note 6.
(*) Banks v. Brown, Moore, 759. | \j) Andrew v. Pearce. 1 N. R. 158.
descended, as heir male of the body of the father, was the question; for if not, then the lease could not bind him within 32 H. 8. c. 28.; and it was adjudged to be a good lease, and that the rent should go along with the reversion; for the words of the statute are, that the rent shall be reserved to the lessor his heirs, or "to those to whom the lands would go if no such lease had been made •" and here the intent was, that the rent should go along with the reversion; and so it may here, for rent naturally follows the reversion, and the second brother is heir to the intail and reversion, though not to the lessor (a).
Tenant in tail makes a lease for twenty years, rendering the usual rent, habendum from Michaelmas next ensuing (a) : this seems a good lease, though it did not begin from the making of the lease, according to the proviso 32 H. 8. c. 28. for the intent of the statute was only that the lease should not exceed the number of twenty-one years from the making, which this lease did not, and in the margent, a case is of Thompson and Trafford, [Poph. 8.] 35 Eliz. in B. R. cited to be adjudged, per totam curiam, that it was a good lease, and well warranted by the statute: though my Lord Coke lays it down for one of his rules, that leases upon that statute are not good if they do not commence from the day of the making, which perhaps may be reconciled upon the same diversity, where they are under twenty-one years and where not so, that from the time of the sealing and executing the lease, till the expiration thereof, there does not intervene more than twenty-one years. For if the commencement of the lease be at such a distance, that between the time of the sealing and executing thereof, and the expiration, there do not intervene above twenty-one years, then such lease seems to be without any aid from this statute, though the time for continuance thereof in the possession of the lessee be under twenty-one years; for otherwise the tenant in tail might so procrastinate the commencement of the lease, as to have always the greatest part of the twenty-one years running out in the time of his issue, which the statute never intended to countenance.
So, where one made a lease for ten years, and after made another lease for eleven years, both these leases are good, because they do not in all exceed twenty-one years, and so the inheritance is not charged with more than a lease for twenty-one years, which the statute allows (a).
Copyholds are not within the statute.
Section III. Of Leases by Tenant in Tail after possibility of Issue extinct.
This estate is where one is tenant in special tail, and the person from
GO Bacon Abr. tit,« Leases." (D.) a.
whose body the issue was to spring, dies without issue, or having issue that issue becomes extinct (a). The law looks upon this estate as equivalent to an estate for life only, and in truth the tenant is only tenant for life, and is permitted to exchange his estate with a tenant for life; an exchange that can only be made of estates that are equal in their nature.
His power to demise, therefore, will come more properly within the consideration of the next subject.
Section IV.] Of Leases by Tenant for Life; absolute or
Tenant for life can make no leases to continue longer than his own life; for his leases are absolutely void at his death (£).
Thus (c) where tenant for life leased premises for twenty-one years, and before the expiration of that term died; the trustees of the remainder-man, then an infant, continued to receive the rent reserved, and he, on coming of age, sold the premises by auction; in the conditions of sale the premises were declared to be subject to the lease, and in the conveyance to the purchaser, the lease was referred to as in the possession of the lessee; and in the covenant against incumbrances, that lease was excepted; the purchaser mortgaged, and in the mortgage deeds the like notice was taken of the lease, and the mortgagee for some time received the rent reserved: held that the lease expired with the interest of the tenant for life, and that the notice since taken of it did not operate as a new lease.
Therefore a lease so rendered void against him in remainder, cannot be set up in a court of law by such remainder-man's acceptance of rent, and suffering the tenant to make improvements after his interest vests in possession (d).—But when the remainder-man lies by, and suffers the lessee or assignee to rebuild, and does not by his answer deny that he had notice of it, all these circumstances taken together, will bind him in a court of equity from controverting the lease afterwards.
Also, a lease executed by a tenant for life, in which the reversioner, who was then under age, is named, but which was not executed by him, is void on the death of the tenant for life, and an execution by the reversioner afterwards is no confirmation of it, so as to bind the lessee, for it is not his covenant (e).
But if tenant for life makes a lease for twenty years generally, and afterwards he in reversion confirms that lease, and then the tenant for life dies; though this at first would have determined by the death of the lessor, yet the confirmation hath made it good for the whole term (a). But if the lease had been for twenty years, if the lessor tenant for life should so long live, there, if the reversioner had confirmed this lease, yet it would not prevent its voidance upon the death of the tenant for life.
(4) Bac Abr. tit. Leases, (i).
to Doe d.Potterv.Archer.i.B.*P.J3i.
(J) Doe d. Simpson v. Butcher, Doug. JG
Jenkins d. Yate v. Church, Coop. 48*. Doe d. Martin v. Watts. 7 T. R. 83. Doe d. Collins v. Weller. 7.T. R. 478. Bull. N. P. M. (0 Ludford v. Barber. 1T. R. M.
The diversity between which cases is this (a): that in the first case, the lease being made generally for twenty years, nothing appears to the contrary, but that it was a good lease for that time absolutely; for the death of the lessor, which would determine it sooner, does not appear in the lease itself; then when the reversioner, who alone could take advantage of that implied limitation, thinks fit to waive it, and confirms the lease as it was made at first for twenty years absolutely, this makes it his own lease, for so much of the time as would have fallen into his reversion by the death of the tenant for life being made the express limitation and circumscription of the twenty years in the lease itself, no confirmation of that lease so limited can enlarge it to extend beyond the life of the lessor, that being the express determination affixed to it.—For although we find one case, where it is held, that if a man makes a lease for twenty-one years, if the lessee so long live, and afterwards the lessor and lessee join in a grant by deed of the term to another, after which the first lessee dies within the twentyone years, yet the grantee shall enjoy it during the residue of the term absolutely. To reconcile this case with the other, it must be intended, that in the assignment no notice is taken of the express limitation affixed to the lease, but that they joined in an assignment of the lease, for the residue of the twenty-one years, and then it may be well construed to amount to a confirmation by the lessor for that time, as the lessor may confirm the land to the lessee for any longer time, and thereby enlarge his estate or interest.
B. tenant for the life of C. and he in remainder or reversion in fee join in a lease for years by indenture (a); this during the life of C. is the lease of B. who then only had the present interest in the lands, and the confirmation of him in the remainder or reversion; but after the death of C. then this becomes the lease of him in the reversion or remainder, and the confirmation of B.; for the lessors having several estates in them in several degrees, the lease shall be construed to move out of each one's respective estate or interest, as they become capable of supporting it, which is the most natural and useful construction of the lease, especially as there can be no estoppel in this case, by reason of the several interests which passed from each. Therefore during the life of tenant for life, if the lessee, being evicted, should declare of a lease for both; this would be against him, as was adjudged, because for that time it was only the lease of the tenant for life. (4) Bac. Abr. tit. Leases. (L. a).
A. lessee for life makes a lease to B. and C. on condition that if they die leaving A. then the land shall revert to A. without determining any estate certain in the grant; all the estate passes under the condition, for in precipe A. was not received on default of B. and C. (a).
If tenant for life and he in remainder in tail join in a lease to A. for life, remainder to B. for life, and the issue in tail accepts the rent of A. and levies a fine, the lease in remainder is good, notwithstanding the feoffment (*).
Where lessee for life makes a lease for years, excepting the wood, underwood, and trees growing upon the land, it is a good exception, although he has no interest in them but as lessee, because he remains always tenant, and is chargeable in waste; wherefore to prevent it, he may make the exception.—But if lessee for years assign over his term, with such an exception, it is a void exception (e).
Section V. Of Leases by Tenants pour autre vie.
Where a person holds for the term of another's life, he is called tenant pour autre vie; and leases made by him of course determine on the death of the cestui que vie, or person during whose life he holds, but not on his own death; for by the Statute of Frauds every estate pour autre vie is made devisable, and if not devised, it shall be assets in the hands of the heir, if limited to the heir; if not limited to the heir, it shall go to the executor or administrator of the grantee, and be assets in their hands.
Section VI. Of Leases by Tenant by the Curtesy of England; in Dower; or Jointure.
Tenant by the curtesy is where a man marries a woman seised of an estate of inheritance, and has by her issue born alive, which was capable of inheriting her estate (d). Tenancy in dower, is where the husband of a woman dies, with or without issue, in which case, the wife shall have the third part of all the lands and tenements whereof he was seized for an estate of inheritance at any time during the coverture, to hold to herself during the term of her natural life. Tenant in jointure is by the 27th H. 8. c. 10. commonly called the Statute of Uses, by which dower may be barred by a jointure, or by conveying a joint estate to husband and wife; but in common acceptation, it means a sole estate limited to the wife only (/).